Vous êtes sur la page 1sur 2

India

Indian law stresses the principles of presumption of innocence. The principle embodies freedom from
arbitrary detention and serves as a bulwark against punishment before conviction. More importantly, it
prevents the State from successfully employing its vast resources to cause greater damage to an un-
convicted accused than he/she can inflict on society. While considering bail applications of the accused,
courts are required to balance considerations of personal liberty with public interest.[44] The Supreme
Court has laid down in its judgements, ""Personal liberty, deprived when bail is refused, is too precious
a value of our constitutional system recognized under Article 21 that the crucial power to negate it is a
great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and
community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigation
gamble decisive of a fundamental right. After all, the personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in terms of procedure established by law." The courts have
also held that foreign nationals cannot be deprived of the right to seek bail. The Delhi High Court
observed, "Law does not permit any differentiation between Indian Nationals and Foreign citizens in
the matter of granting bail. What is permissible is that, considering the facts and circumstances of each
case, the court can impose different conditions which are necessary to ensure that the accused will be
available for facing the trial. It cannot be said that an accused will not be granted bail because he is a
foreign national."[45]

The Code of Criminal Procedure, 1973 does not define bail, although the terms bailable offence and
non-bailable offence have been defined in section 2(a) of the Code. A Bailable offence is defined as an
offence which is shown as bailable in the First Schedule of the Code or which is made bailable by any
other law, and non-bailable offence means any other offence. A person who is arrested for a 'bailable'
offence may secure bail at the police station, while those who fail to secure police bail and those
arrested for non-bailable offences have to secure bail in court.[1]

Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount
of security that is to be paid by the accused to secure his release has not been mentioned in the Code.
Thus, it is left to the discretion of the court to put a monetary cap on the bond. The Supreme Court of
India has delivered several cases wherein it has reiterated that the basic rule is - bail and not jail. One
such instance came in State Of Rajasthan, Jaipur v. Balchand @ Bailey which the Supreme Court
decided on 20 September 1977, and held that the basic rule is bail, not jail, except where there are
circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other
troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who
seeks enlargement on bail from the court. The bench of Krishnaiyer, V.R. had observed that when
considering the question of bail, the gravity of the offence involved and the heinousness of the crime
which are likely to induce the petitioner to avoid the course of justice must weigh with the court.
Taking into consideration the facts of the case the apex court held that the circumstances and the social
milieu do not militate against the petitioner being granted bail.[46]

When a person accused of a crime is arrested, his statement is recorded and information such as the
name, residence address, birthplace, charges filed are noted. The police officer may also check back the
criminal record if any in the police station and ask for fingerprints to file a case against the accused.
Under the Code of Criminal Procedure 1973 (First Schedule), offences have been classified as
"bailable" and "non-bailable" offences. In the case of bailable offences, if the accused produces proper
surety, and fulfils other conditions, it is binding upon the Investigating officer to grant bail. However, in
case of a non-bailable offence, the police cannot grant bail; it can only be granted by a Judicial
Magistrate/Judge. The Investigating Officer must produce the accused before the Judicial Magistrate /
Judge concerned within 24 hours of his arrest. At that time, the accused has a right to apply for bail.
Depending upon the facts of the case, the judge decides whether bail should be granted. If bail is
granted the accused must deposit money with the court. Generally, for lesser crimes, a standard amount
is asked to be deposited for awarding the bail.[citation needed]

There are some conditions put under section 437 of the Cr.P.C. wherein bail can be requested even for a
non-bailable offence. In non-bailable cases, bail is not the right of the accused, but the discretion of the
judge if regards the case as fit for the grant of bail, it regards imposition of certain conditions as
necessary in the circumstances. Section 437(3) elaborates the conditions set by the law to get bail in
non-bailable offences. The sub-section says that when a person accused or suspected of the commission
of an offense punishable with imprisonment which may extend to seven years or more or of an offense
under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement
of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1).
However, for that, the Court has the power to impose any condition which it considers necessary. Some
conditions that the court may place while granting bail are to ensure that such person shall attend in
accordance with the conditions of the bond executed under this Chapter, or to ensure that such person
shall not commit an offence similar to the offence of which he is accused or of the commission of
which he is suspected, or otherwise in the interests of justice.